Tuesday, July 27, 2010

Tennessee Titans sue USC and Lane Kiffin for Inducement of Breach of Contract and Tortious Interference

Marcia Smith of the Orange County Register has the story on the lawsuit and interviews me and Lewis & Clark Law School professor Tung Yin about it.

The gist of the lawsuit: the Titans allege that USC and its new coach, Lane Kiffin, "maliciously" lured away running backs coach Kennedy Pola to become the Trojans' offensive coordinator.

The alleged malicious part is that Pola's contract with the Titans required written permission from both the Titans team president and its general counsel for him to take another job. He didn't get the permission, and the Titans claim USC and Kiffin knew about the permission requirement. Now the Titans don't have a running backs coach with a week to go before training cap.

Here is an excerpt from Smith's story:
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"It's a funny lawsuit that could have been avoided if Kiffin had made the customary courtesy call before talking to Pola," said Lewis & Clark Law School professor Tung Yin. "The harm that they (the Titans) are also alleging also probably wouldn't have been an issue if the hiring happened two or three months ago and not left the Titans without a running backs coach a couple days before camp opens."

This is the latest controversy for Kiffin, who left his University of Tennessee head coach job and a trail of secondary NCAA violations and rubbed-the-wrong-way peers after the 2009 season to become the USC coach. Titans coach Jeff Fisher, a USC alumnus who hired Pola in February, expressed dissatisfaction with Kiffin's methods that neglected the terms of Pola contract, which ran at least through Feb. 14, 2011.

"There is a tradition of coaches changing teams for promotions, even when their employment contracts contain language that technically limits their ability to change teams,..." said Vermont Law School professor Michael McCann. "The Titans have to be careful here. If the Titans develop a reputation for not letting assistant coaches take on other jobs, it may hurt their chances for hiring top assistant coaches."

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To read the rest of Smith's column, click here. To read the complaint, click here.

I have 5 other points:

1) I think it would be interesting to find out how common the alleged clause requiring Pola to obtain written permission is in the contracts of Titans' assistant coaches and, if it is common, whether the team has enforced it with other departing coaches. Or, if its unique to Pola's contract, why did the team insist on having it with him?

2) Although the facts of this case are different, there was the recent case in New York involving James Madison University engaging in tortious interference by hiring away basketball coach Matt Brady from Marist College without obtaining the proper permission from Marist. Marist won the case. While that case is in a different jurisdiction, does not concern a position promotion (as Pola, now an offensive coordinator as opposed to mere running backs coach, is getting with USC), and probably involves different contractual language, perhaps the Titans nonetheless feel emboldened by the outcome of that case.

3) I assume Pola isn't being sued himself for breach of contract because the Titans do not believe it is financially worth it, or because they still like him as a person, or because they do not want to develop a reputation for suing departing employees who leave the team for a promotion.

4) While this lawsuit is unlikely to prevail, the Titans are sending a message that other teams probably agree with: don't poach coaches right before the start of training camp.

5) If this dispute were between the Titans and another NFL team, rather than with a college team, we wouldn't see a lawsuit -- we'd see Commissioner Goodell resolve it, internally (like when Commissioner Tagliabue resolved the dispute between the Jets and Patriots when the latter hired Bill Belichick away -- the Jets got a first round pick, the Patriots got what turned out to be one of the best coaches of all time).